Adjudication of Name Disputes by the Companies Tribunal

The Companies Tribunal (Tribunal) is established in terms of Section 193 of the Companies Act 71 of 2008 (the Act) to adjudicate applications made in terms of the Act. The Tribunal was created as an alternative to court as envisaged in Section 34 of the Constitution, which provides that “Everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum”.

Since the inception of the Tribunal, the majority of the applications handled relate to name disputes. In the 2015/16 financial year, 273 such applications were received, 226 of which were finalised. Name disputes have constituted 63% of the Tribunal’s caseload since inception. Some 60% of cases received for the 2016 financial year to
date have been name disputes.

Company name disputes have also increased year on year, which is not alarming as company names have both economic and sentimental value. The economic value of a company name constitutes part of the company’s goodwill, which can amount to thousands of Rands.

Company names are also vital for branding, as they distinguish the company from others and are also used for identification with particular products and services. Most applications for name disputes received by the Tribunal are based on sections 11(2)(b) and 11(2)(c)(i) which state that a name must not be confusingly similar to an existing name or trademark and that it must not mislead a person to believe that the company is associated with any other entity. Parties dissatisfied with the Tribunal’s decision have recourse to the courts. However, since the establishment of the Tribunal, only six name dispute decisions have been taken to the High Court for review.

The Tribunal adjudicates name disputes based on the procedure and merits of a case. In filing for a name dispute, the applicant must serve the respondent within five business days and provide the Tribunal with proof of service (confirmation that the respondent has been notified of the application). The Tribunal will make a determination if the name in dispute is confusingly or deceptively similar to that of the applicant.

South Africa has, since the advent of democracy, prioritised the promotion and development of small, medium and micro enterprises (SMMEs) and embraced entrepreneurial spirit. South Africans are encouraged to register company names that are not confusingly similar to others, but also names that will easily identify the services that are offered. The Companies Tribunal has jurisdiction throughout the country and is accessible to all, irrespective of geographic location. Tribunal services are free of charge.